Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
Narrowing the Gate: Options for Criminal Justice Reform
Jennifer E. Walsh
Nearly twenty-five years ago, crime rates hovered at near-historic highs. Citizens complained that a “revolving door” system of justice was ineffective at curbing crime, and lawmakers rushed to unveil a broad array of policy reforms to address the concern that the system was “too soft” on crime.
Some policies focused on prevention efforts, such as expanded outreach efforts for at-risk youth, but most focused on policy reforms that made the entire system tougher for offenders. Among the most visible policies, “three-strikes-and-you’re out” sentencing laws imposed lengthy sentences on repeat offenders, and “truth-in-sentencing” laws reduced good-time credits for those incarcerated for violent crimes. Other policies enhanced resources for policing efforts, restricted prosecutors from plea-bargaining, and mandated that judges impose automatic sentencing enhancements for drug offenses and crimes committed with a gun. The juvenile justice system also became more punitive. Young offenders were increasingly subjected to intensive supervision or placed in residential correctional facilities, and in more than a dozen states, juveniles accused of certain crimes were treated as adults.
Concern over Mass Incarceration
But now that crime rates are approximately half of what they once were, some lawmakers are concerned that the system has become too tough. Over the past quarter-century, the Bureau of Justice Statistics reports that the number of people behind bars at the local, state, or federal level increased by nearly a million people – from 1.3 million to 2.2 million – and the total number of people under the supervision of the criminal justice system increased from 4.7 million to 6.85 million. This is down from a record high of 7.4 million posted in 2007, but, today, one in thirty-six Americans is still under some form of penal supervision.
Additionally, lawmakers are concerned that the impact on racial and ethnic minority communities has been too severe. According to a report issued last year by the Bureau of Justice Statistics, 1 percent of white males aged 30-39 was behind bars; comparatively, the statistic was 2 percent for Hispanics and 6 percent for blacks. This overrepresentation has caused ripple effects throughout many minority, urban communities. Researchers note that when incarceration rates are high, children suffer the loss of one or more parents for long periods of time, extended families are negatively impacted by the separation, and communities are deprived of adult male presence in civic affairs and the workforce.
As a result, lawmakers on both sides of the political aisle are calling for a new wave of criminal justice reform. Some have called for an outright repeal of get-tough sentencing laws, while others have proposed softening the penalties for many non-violent offenses. This November, California Governor Jerry Brown hopes that voters will approve Proposition 57, a ballot initiative that will remove many sentencing enhancements for non-violent offenders and give judges and parole boards more input into the sentencing process. If enacted, this initiative would effectively reverse the 1977 determinate sentencing law enacted during Brown’s first stint as governor.
But simply reversing course may not be the best answer. As Christian citizens concerned with these issues, we should be ready to consider each policy reform suggestion through the lens of history and with an eye to its impact on individuals, communities, and on society as a whole. Moreover, we should consider how an overreliance on the criminal justice system to address societal ills might also diminish the influence of positive social institutions, such as families, churches, and schools over time.
The Effects of Zero-Tolerance Policies
While revisiting specific sentencing policies might address some of the concerns about over-incarceration, the reality is that the problem of “mass punishment” stems from a series of policy changes that expanded the pipeline to the criminal justice system and that made the outcome more punitive than ever before. To keep government officials from becoming too soft on crime, “zero-tolerance” policies have removed the ability of officials to overlook minor indiscretions. Now they must formally respond to any and all wrongdoing and, in doing so, apply the full force of the law.
Take, for example, public school disciplinary policies. In the past, public school officials had widespread discretion when it came to maintaining order. Principals used a variety of methods to encourage student compliance, including counseling, paddling, detention, suspension, and expulsion. Today, the range of policy options for teachers and other school officials is much smaller. Certain policies, like the use of corporal punishment, have largely disappeared – thirty-one states have banned it altogether – and other disciplinary options have been subsumed by “zero-tolerance” policies that function much like mandatory sentencing laws.
Originally, these policies were designed to swiftly deal with students who brought weapons to campus or otherwise endangered the lives of others, but they have since expanded to cover other behaviors, such as drug and alcohol possession, fighting, and damage to school property. Such policies have been billed as common-sense solutions to preserve school order, but because they are applied in a mechanical fashion, they have led to the suspension of students taking over-the-counter medication, such as ibuprofen, or the expulsion of students who brought butter knives to school so that they could prepare their school lunches.
As a result of these more stringent disciplinary policies, some researchers have expressed concern about the “school-to-prison” pipeline because students who are suspended or expelled from schools are at risk for engaging in delinquent activity while they are banned from school. Moreover, in some districts, “zero-tolerance” discipline cases are not confined to the school setting, but are transferred automatically to juvenile court officials for further review. In the past, such review would focus almost exclusively on the rehabilitation of the student, but, in recent years, the juvenile justice system has had its own mandatory, get-tough movement.
In some jurisdictions, police who apprehend juvenile suspects now no longer have the discretion to return juvenile delinquents to their parents for informal discipline, but are required to bring juveniles to a detention center for formal processing and adjudication. In some states, juvenile court judges are limited in the ways in which they can address youthful offending. Specifically, fifteen states require the juvenile court to waive jurisdiction when the cases meet certain criteria for age, offense type, and prior record. In those cases, young offenders are sent to the criminal courts so that they may be prosecuted, tried, and sentenced as adults.
The Effects of Changing Policing Practices
In the early 1990s, New York City police adopted its own type of “zero-tolerance” policy. Inspired by the Wilson and Kelling’s “broken windows” theory of crime that linked serious crime to unchecked social disorder, police in New York began actively patrolling the streets in an attempt to curb offenses such as vandalism, prostitution, public urination, subway turnstile jumping, and drug crimes. Whereas in the past, police might have overlooked minor offenses like these, the crackdown on social disorder crimes resulted in increased “stop and frisk” encounters and an increase in subsequent arrests.
Other cities soon followed suit. The Violent Crime Control and Law Enforcement Act of 1994 created a new Office of Community Oriented Police Services (COPS) that funded more than 100,000 new community police officers serving across more than 12,000 agencies. The hope was that an increased police presence would facilitate a crackdown on social disorder crimes, and recent research suggests that this worked. Communities that invested in a stronger police presence saw the rate of arrests for social disorder crimes increase and the total number of crimes decrease. But, researchers also note the effects are often temporary. Lawless behavior slows when police are actively patrolling, but once they move on to other neighborhoods, petty offending behavior usually returns.
The Cumulative Effect of Gate-Widening Policies
The changes in school policies, juvenile justice processes, and policing practices to crack down on low-level misbehavior mean that an increasing number of Americans are brought into the criminal justice system each year. Once in the system, people often have a difficult time getting out. Many low-level offenders are sentenced to probation, which is billed as a cost-effective alternative to prison when offenders pose little threat to public safety. In the past, few conditions were placed on probationers; they often just had to avoid committing new crimes while serving out their probation term. But concern over rising crimes and problems caused by repeat offenders has resulted in probation becoming tougher too.
Today, probationers are still allowed to live within the community, but they are subject to a series of conditions, which include frequent check-in visits with probation officers, random drug tests, and participation in rehabilitation-oriented programming. Failure to meet any of these requirements can result in incarceration for the duration of the probation term. Currently, about one-third of probationers eventually end up in jail or prison because they have failed to satisfy their conditions of parole.
For those who avoid imprisonment, there are long-lasting civil consequences for having any kind of encounter with the law. Merely being arrested – even if charges are subsequently dropped – creates a criminal justice record that can negatively impact employment decisions, volunteer opportunities, family interactions, and future criminal justice outcomes. Having a misdemeanor or felony conviction compounds these problems. Misdemeanants may be disqualified from holding certain jobs and may be ineligible for government benefits; felons are routinely ineligible for most means of employment, voting, student loan benefits, and other government aid programs. Even if the criminal records are later expunged, the proliferation of digital arrest and conviction records means that prior brushes with the law are almost impossible to hide. Consequently, the collateral consequences of being in the criminal justice system are almost always permanent.
Suggestions for Future Reforms
If lawmakers are serious about ending the problem of mass punishment, then they need to help criminal justice officials concentrate their resources and energy on the issue of public safety. Many of the reforms enacted a generation ago did just that. Policies that increased resources for police gave them the tools to concentrate their time and attention on crime “hot spots” and to coordinate efforts to disrupt the work of crime syndicates and gangs. This focused attention on solving crime problems greatly improved public safety and allowed government resources to be spent on criminals who posed ongoing threats to others.
Similarly, “get-tough” sentences for violent youth and repeat offenders allowed these individuals to be incapacitated so that they were prevented from harming others. These policies have been effective in reducing crime and the victimization of others. Still other laws have rightly communicated the serious consequences to others of “social disorder” crimes, such as driving while impaired, manufacturing and selling narcotics, and trading in stolen weapons.
But other reforms seem to be less about preventing harm to others and more about using the law as a vehicle to achieve social control. In the past, proper socialization was the domain of families, churches, schools, and community organizations, but as each of these institutions has suffered decline and decay, the authority of the state – and the power of the law - have concomitantly increased. Accordingly, the criminal justice system has been used to obtain social conformity, with arrest, prosecution, conviction, and imprisonment the tools offered up to bring about compliance and correction. At the point in which people obey merely to avoid punishment, they cease to be citizens, and instead become subjects.
Christians can help facilitate conversations about criminal justice reform by assisting lawmakers in recognizing that many of the social ills that lead to crime and delinquency are better ameliorated within families, churches, schools, and communities – not the criminal justice system. They can also act as first responders to those within their communities who suffer the ill effects of poor social conditions by offering assistance to broken families and individuals struggling with poverty, depression, and addiction.
Additionally, Christians can be the first to extend forgiveness and highlight a pathway for restoration for people within their communities who go astray. While such efforts are not as quick and easy as “zero-tolerance” approaches to disorder and crime, they are likely to bring about much better results: a healthier community, a narrower gate into the criminal justice system, and, hopefully, the eventual elimination of a permanent criminal class.
Questions for Reflection:
- Why do you think “zero-tolerance” policies have become so popular of late? Are there any benefits to adopting a uniform policy that treats everyone the same?
- What are crimes that you feel are truly worthy of punishment? What offenses could be better handled with some type of non-punitive intervention?
- How can Christians practically work together to strengthen families, churches, and communities so they help to promote social good and narrow the gate into the criminal justice system?
-- Jennifer E. Walsh is dean of the College of Liberal Arts and Sciences and a professor of political science at Azusa Pacific University.
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”